What Constitutes a 5-Year Immigration Bar?

According to the Immigration and Nationality Act, Section 212(a)(6)(B), a 5-year immigration bar applies to persons who fail to appear at an immigration proceeding “without reasonable cause.” If an immigrant receives a 5-year bar, they must remain outside the United States for at least five years before applying for re-entry.

A 5-year immigration bar may be imposed “in absentia” (while the immigrant is not present). If such a bar is placed on an individual, it will go into effect when they leave the U.S. They would need to wait five years before applying for a visa to gain reentry.

Common Exceptions to the Five-Year Immigration Bar

There are several exceptions to the five-year immigration bar, including if the applicant can demonstrate extreme hardship to a qualifying relative (such as a spouse or child), if the applicant has been granted a waiver for crimes committed more than 15 years ago, or if the applicant is a victim of certain crimes such as domestic violence. It is important to consult with an experienced immigration attorney to determine if any of these exceptions apply to your case and to navigate the waiver process effectively.

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Reasonable Causes for Missing an Immigration Hearing

The Immigration and Nationality Act provides a list of reasons that may qualify as “reasonable” excuses to miss a hearing. These reasons include:

• Serious illness
• Mechanical breakdown of a vehicle
• Ineffective assistance from counsel
• Being in state or federal custody

If you miss your hearing for one of these reasons, you may be able to avoid a 5-year bar if you can “provide sufficient and credible corroborating evidence of the circumstance.” 

The Immigration and Nationality Act also lists several reasons that do not qualify as “reasonable” for missing a court proceeding. These include:

• Misplacing a hearing notice
• The notice to appear was not in the individual’s native language
• Failure of the immigrant to update an address
• Fear that the hearing will result in deportation
• Traffic
• Being pregnant
• Caring for children or having family problems 

Is There a Waiver Process for the 5-Year Immigration Bar?

No. The only way to overcome a 5-year bar is to prove that your failure to appear at your immigration hearing was with “reasonable cause.”

After waiting out the 5-year immigration bar, an individual may be required to complete and submit Form I-601A, Application for Provisional Unlawful Presence Waiver. With the approval of the unlawful presence waiver, the individual must submit Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

The court process can be daunting, especially if someone is experiencing language difficulties. It can be beneficial to obtain the assistance of an immigration lawyer before any court proceedings.

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Returning to the U.S. After a 5-Year Immigration Bar

Persons who receive a 5-year immigration bar in absentia for failure to appear may reapply to return to the U.S. after residing outside the U.S. for five years. Sometimes, when the person has lived outside the U.S. for the required time, they won’t need additional paperwork to reenter.

When a waiver is required, the applicant should first file Form I-600 or I-601A. Once the waiver or provisional waiver is approved, an applicant must request permission to reenter the U.S. on Form I-212. The form must be filed from outside the U.S., requesting permission to reapply for immigration. 

Compiling the Necessary Documentation

Supporting documentation is required when you file any form with the United States Citizenship and Immigration Services (USCIS). Some of the information that USCIS may request includes:

• Record of past deportation proceedings
• Listing of immediate relatives in the U.S., including full name, date, and place of birth, port of entry to the U.S., their current immigration status, and their Alien Number (if known)
• Evidence that you have remained outside the U.S. for any prescribed period, such as a 5-year immigration bar
• Proof of your citizenship in your country of origin
• Form G-325A, Biographic information
• Evidence of prior aliases you have used, including maiden name
• Any criminal records and your official police record

Every immigration case is different, and you may not need to gather all of the above information. Or you may need to submit additional information, depending on your circumstances. If you hope to ensure your reentry to the U.S. after a 5-year immigration bar is smooth, you should consider working with an immigration attorney who can help you gather documentation and understand the requirements.

Hiring an Immigration Lawyer When You Need It Most

The laws regarding immigration can be confusing. When you are faced with trying to convert legal jargon into understandable language, it can be almost impossible. Finding an immigration attorney who can help will benefit you and your family. 

No matter your citizenship goals, New Frontier Immigration Law is prepared to work with you to smooth the process. Contact us to ask us any questions you have about the 5-year immigration bar or returning to the U.S.